United States v. Watterson

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

7-10-2000

United States v. Watterson
Precedential or Non-Precedential:

Docket 98-1596

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Filed July 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1596

TOSHIA WATTERSON, a/k/a TASHA

Toshia Watterson,
Appellant

v.

UNITED STATES OF AMERICA

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Cr. No.: 97-539-05
District Judge: The Honorable Harvey Bartle, III

Submitted Under Third Circuit LAR 34.1(a)
March 2, 2000

Before: ROTH, BARRY and STAPLETON, Circuit Judges

(Opinion Filed: July 10, 2000)

Clayton A. Sweeney, Jr., Esquire
Argued
Suite 815 1528 Walnut Street
Philadelphia, PA, 19102

Roger Schrading, Esquire
Krasner & Restrepo
211 North 13th Street
Suite 500
Philadelphia, PA 19107

Attorney for Appellant
 J. Alvin Stout, III
Assistant United States Attorney
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

This appeal primarily requires us to decide whether the
District Court erred in sentencing Toshia Watterson as if
she had been convicted of, or had stipulated to, distributing
a controlled substance within 1000 feet of a school zone,
when she had not. We find that the District Court erred in
so doing and, accordingly, will vacate the sentence and
remand for resentencing.

I

Beginning in 1995, Toshia Watterson ("Watterson") was
involved with the "Massey Organization," a sophisticated
drug trafficking ring in and around Philadelphia,
Pennsylvania. Led by Derrick Massey, with Delbert Massey
acting as his brother's right-hand man, the Massey
Organization distributed drugs within 1000 feet of various
public and parochial schools, among other locations. More
specifically, the Organization obtained bulk quantities of
marijuana and cocaine, broke them down into lesser
quantities, and distributed the drugs primarily through
three local bars -- the Hideaway Lounge, the 20 Plus Club
and the Commodore Lounge -- all of which were located
near those schools. Watterson, the girlfriend of Derrick
Massey, at various times worked at all three of the
aforementioned bars, and participated in the drug
trafficking operation.

On September 30, 1997, a thirty-one count indictment
was returned against Watterson and nine others, including

2
the Massey brothers, based on their involvement in and
with the Massey Organization. Specifically, Watterson was
charged with conspiracy to distribute cocaine and
marijuana, in violation of 21 U.S.C. S 846 (Count One);
possession of cocaine with intent to distribute, in violation
of 21 U.S.C. S 841(a)(1) (Count Eighteen); possession of
marijuana with intent to distribute, in violation of 21 U.S.C.
S 841(a)(1) (Count Nineteen); and criminal forfeiture,
pursuant to 21 U.S.C. S 853 (Count Twenty-Six). She was
not charged with violating or conspiring to violate 21 U.S.C.
S 860, which prohibits drug distribution "in or near" schools.1

On April 3, 1998, Watterson pled guilty to conspiracy to
distribute cocaine and marijuana (Count One) and
forfeiture (Count Twenty-Six). The other charges against her
were subsequently dismissed.

On June 26, 1998, Watterson was sentenced to fifteen
months in prison.2 At sentencing, Watterson challenged the
computation of what was to become her guideline
imprisonment range, specifically the use of offense
guideline S 2D1.2 of the United States Sentencing
Guidelines,3 which, as relevant here, deals with drug
_________________________________________________________________

1. 21 U.S.C. S 860, in its current form, states, as relevant here:

Distribution or manufacturing in or near schools and colleges

Any person who violates section 841(a)(1) . . . by distributing,
possessing with intent to distribute, or manufacturing a controlled
substance in or on, or within one thousand feet of, the real
property
comprising a public or private elementary, vocational, or secondary
school or a public or private college, junior college, or
university, or
a playground, or housing facility owned by a public housing
authority, or within 100 feet of a public or private youth center,
public swimming pool, or video arcade facility, is (except as
provided
in subsection (b) of this section) subject to (1) twice the maximum
punishment authorized by section 841(b) of this title; and (2) at
least twice any term of supervised release authorized by section
841(b) of this title for a first offense[.]

2. Based on a total offense level of fourteen and a criminal history
category of I, Watterson's guideline imprisonment range was fifteen to
twenty-one months.

3. See United States Sentencing Commission, Guidelines Manual
("U.S.S.G.") (Nov. 1997).
3
offenses committed near "protected locations" such as
schools and which, if applied, would result in a base
offense level two levels higher than that called for under
S 2D1.1.4 Watterson argued that S 2D1.2 was inapplicable
because Appendix A (the "Statutory Index") of the
Guidelines compels the use of S 2D1.1 rather than S 2D1.2
as the guideline by which to set the base offense level
when, as here, there was a 21 U.S.C. S 846 conspiracy to
violate only 21 U.S.C. S 841(a)(1) and not 21 U.S.C. S 860.
The District Court concluded, as had the Presentence
Investigation Report, that S 2D1.2 was "applicable" but did
not explain why it reached that conclusion. Presumably, it
believed, as some other courts believe, that it was entitled
to consider all relevant conduct in determining which
offense guideline section should be selected in thefirst
instance, and because the drug conspiracy operated in a
school zone, S 2D1.2, the section listed in the Statutory
Index as applicable to such violations, was most
appropriate. The government agreed. We disagree.

II

The District Court had jurisdiction pursuant to 18 U.S.C.
S 3231. We have jurisdiction under 18 U.S.C.S 3742(a) and
(e), and 28 U.S.C. S 1291. We review the District Court's
legal construction of the Sentencing Guidelines de novo.
United States v. Johnson, 199 F.3d 123, 125 (3d Cir. 1999).
_________________________________________________________________

4. S 2D1.2. Drug Offenses Occurring Near Protected Locations or Involving
Underage or Pregnant Individuals; Attempt or Conspiracy

(a) Base Offense Level (Apply the greatest):

(1) 2 plus the offense level from S 2D1.1 applicable to the
quantity
of controlled substances directly involving a protected location or
an underage or pregnant individual; or

(2) 1 plus the offense level from S 2D1.1 applicable to the total
quantity of controlled substances involved in the offense; or

(3) 26, if the offense involved a person less than eighteen years
of
age; or

(4) 13, otherwise.

4
The issue presented, i.e. whether S 2D1.2, rather than
S 2D1.1,5 is the applicable offense guideline section for a
defendant who has not stipulated or pled guilty to, or been
convicted at trial of, a violation of S 860 has caused a
circuit split. In sum, the Fourth, Fifth, Ninth and Eleventh
Circuits ("the majority") do not permit the use of S 2D1.2 in
such a case, see United States v. Crawford, 185 F.3d 1024
(9th Cir. 1999); United States v. Saavedra, 148 F.3d 1311
(11th Cir. 1998); United States v. Chandler, 125 F.3d 892
(5th Cir. 1997); United States v. Locklear, 24 F.3d 641 (4th
Cir.), cert. denied, 513 U.S. 978 (1994); while the Sixth and
Eighth Circuits ("the minority") do. See United States v.
Benjamin, 138 F.3d 1069 (6th Cir. 1998); United States v.
Clay, 117 F.3d 317 (6th Cir.), cert. denied , 522 U.S. 962
(1997); United States v. Oppedahl, 998 F.2d 584 (8th Cir.
1993).

Subsumed within the question of which offense guideline
section is applicable is a broader guideline dispute: at what
point is "relevant conduct" factored in? Should relevant
conduct be considered at the outset in determining the
applicable offense guideline section or may it only be
considered once that guideline section has been
determined? Indeed, it is this broader dispute over the use
of relevant conduct which has caused the majority and the
_________________________________________________________________

5. S 2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses);
Attempt
or Conspiracy

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. S
841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. S 960(b)(1), (b)(2), or
(b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance and that the
defendant committed the offense after one or more prior
convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. S
841(b)(1)(A),
(b)(1)(B), or (b)(1)(C), or 21 U.S.C. S 960(b)(1), (b)(2), or
(b)(3), and
the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance; or

(3) the offense level specified in the Drug Quantity Table set
forth
in subsection (c) below.

5
minority to come to different conclusions. See Crawford,
185 F.3d at 1026 ("These circuits arrive at different results
because they disagree about the role of `relevant conduct' in
selecting the applicable offense guideline section.").

We join the majority and conclude, based on our analysis
of the Guidelines, that the applicable offense guideline
section for a defendant who has not been convicted of 21
U.S.C. S 860 or stipulated to having committed a drug
offense in or near a school zone is S 2D1.1. We also
conclude that relevant conduct is factored in, if at all, only
after the appropriate offense guideline section is selected.6

The Framework

While the Guidelines describe a nine-step process by
which to arrive at a sentencing range, seeS 1B1.1, only the
first two steps are relevant here. According toS 1B1.1(a),
the District Court first selects the offense guideline section
applicable to the offense of conviction. SeeS 1B1.1(a).
"Because it channels the remainder of the sentencing
process, selection of the correct offense guideline section is
critically important." Saavedra, 148 F.3d at 1314. The
Guidelines instruct the Court to select
_________________________________________________________________

6. The circuit split will be resolved in favor of the majority view on
November 1, 2000 when, unless modified or rejected by Congress, a
proposed amendment to SS 1B1.1, 1B1.2 and the Statutory Index's
introductory commentary becomes effective. In its synopsis of the
proposed amendment, the Sentencing Commission explained that

[t]he clarification [of the inter-relationship among these
provisions]
is intended to emphasize that the sentencing court must apply the
offense guideline referenced in the Statutory Index for the statute
of
conviction unless the case falls within the limited`stipulation'
exception set forth in S 1B1.2(a). Therefore, in order for the
enhanced penalties in S 2D1.2 to apply, the defendant must be
convicted of an offense referenced to S 2D1.2, rather than simply
have engaged in conduct described by that guideline. Furthermore,
the amendment deletes Application Note 3 of S 1B1.2 (Applicable
Guidelines), which provided that in many instances it would be
appropriate for the court to consider the actual conduct of the
offender, even if such conduct did not constitute an element of the
offense.

6
 the offense guideline section in Chapter Two (Offense
Conduct) most applicable to the offense of conviction
(i.e., the offense conduct charged in the count of the
indictment . . . of which the defendant was convicted).
Provided, however, in the case of a plea agreement
. . . containing a stipulation that specifically
establishes a more serious offense than the offense of
conviction, [the Court must] determine the offense
guideline section in Chapter Two most applicable to the
stipulated offense.

U.S.S.G. S 1B1.2(a)(emphasis in original); see also U.S.S.G.
S 1B1.2, comment. (n.1). The Statutory Index points the
Court to the applicable offense guideline section in Chapter
Two.

Next, the Court determines the base offense level and
applies any appropriate specific offense characteristics,
cross references, and special instructions contained in the
offense guideline section, as well as any other applicable
sentencing factors pursuant to the definition of relevant
conduct. See SS 1B1.1(b), 1B1.3. Only at this point may the
Court factor in relevant conduct. See United States v.
Lawton, 193 F.3d 1087, 1094 (9th Cir. 1999); Crawford,
185 F.3d at 1028; Saavedra, 148 F.3d at 1316 ("[I]n relying
on the concept of relevant conduct in order to justify
applying S 2D1.2 to convictions under S 841(a)(1), [the 6th
and 8th Circuits] ignore the fact that the concept of
relevant conduct does not come into play until the correct
offense guideline has been selected")(emphasis in original);
Chandler, 125 F.3d at 897-98; United States v. Goldfaden,
959 F.2d 1324, 1329 (5th Cir. 1992); see also United States
v. Knobloch, 131 F.3d 366, 372 n.4 (3d Cir. 1997)("[A]
sentencing court can look to relevant conduct only to
answer the questions posed by the relevant guidelines."). If
the Court deems conduct to be relevant in any of the
enumerated ways,7 the appropriate adjustments are made.
_________________________________________________________________

7. "Relevant conduct" is broadly defined to include:

[A]ll acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and in the case of a jointly undertaken criminal
activity

7
The Framework Applied

Step One

Based on this framework, the District Court in choosing
the applicable offense guideline section was obligated to

look at the crime of which Watterson was convicted or at a
more serious crime had she stipulated to such a crime.

It is undisputed that, despite the fact that the conspiracy
to which Watterson pled guilty operated within 1000 feet of
a school zone, Watterson was not charged with or convicted

of conspiracy to distribute a controlled substance in or near
a school zone, a violation of 21 U.S.C. S 860, but, rather, a
21 U.S.C. S 846 "conspiracy to distribute cocaine and

marijuana," in violation of 21 U.S.C. S 841(a)(1). Section
860 is a substantive offense which requires proof of an
element not included in S 841, as courts have"uniformly

held," and not simply "an enhancement provision." United
States v. McQuilkin, 78 F.3d 105, 109 (3d Cir.), cert. denied,
519 U.S. 826 (1996). We are not, therefore, free to disregard
the government's charging decision, or Watterson's plea of

guilty. Moreover, the Statutory Index specifically refers a
violation of S 841(a) to S 2D1.1, while it refers a violation of
S 860 to S 2D1.2. Concomitantly, S 2D1.1 includes S 841
but not S 860 as one of the statutory provisions to which it
is applicable and S 2D1.2 includes S 860 but not S 841.

Because a S 846 conspiracy to violate S 841(a)(1), and not
_________________________________________________________________

(a criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of
others
in furtherance of the jointly undertaken criminal activity, that
occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid
detection or responsibility for that offense; . . . all harm that
resulted from [those] acts and omissions . . ., and all harm that
was
the object of such acts and omissions; and any other information
specified in the applicable guideline.

U.S.S.G. S 1B1.3(a).
8
S 860, is what was charged and pled to here, the
appropriate offense guideline section was S 2D1.1.8

The government argues, however, and the District Court
apparently believed, that relevant conduct -- which, here,
at least arguably includes the school zone distributions --
may be taken into account in choosing the applicable
offense guideline section. To support this argument, it
contends, as do the courts in the minority, that the
Statutory Index is non-exhaustive and that an offense
guideline section other than that or those listed for a
particular statute may be more appropriate based on the
_________________________________________________________________

8. In terms of selecting the offense guideline section, the Statutory
Index
lists S 2D1.2 as also applicable to violations of S 846 and, thus, the use
of S 2D1.2 might seem appropriate. See Crawford, 185 F.3d at 1028-29
(S 846 would permit use of S 2D1.2 if the school zone conduct was an
object of the conspiracy). What is relevant in selecting the offense
guideline section is not S 846, per se, but, rather, the underlying object
of the conspiracy, which the government does not argue was the
distribution of drugs in or near a school zone. See S 2X1.1(a) and
comment. (n.2); United States v. Takahashi, 205 F.3d 1161, 1167 (9th
Cir. 2000)(holding, in case where object of S 846 conspiracy did not
include distributing drugs in or near a school zone, that S 2D1.1 rather
than S 2D1.2 was the most applicable guideline section); Crawford, 185
F.3d at 1028-29 ("[The] court must necessarily consider the object of the
conspiracy to determine which guideline is `most applicable to the
offense of conviction."); see also Saavedra , 148 F.3d at 1315 n.4 ("The
Statutory Index lists both S 2D1.2 and S 2D1.1, among several others, as
applicable to convictions under 21 U.S.C. S 846. This does not support
the contention of the United States that Saavedra can be sentenced
under S 2D1.2 for a S 846 conspiracy to violate 21 U.S.C. S 841(a)(1). The
captions to S 2D1.1 and S 2D1.2 indicate that they are intended to apply
to both substantive violations of the statutory provisions on which they
are based as well as to conspiracies to violate those provisions. Thus,
the
Statutory Index intends S 2D1.2 to apply only to S 846 conspiracies to
violate 21 U.S.C. SS 859, 860, or 861."); Locklear, 24 F.3d at 648 n.4
("We note that Appendix A lists section 2D1.2 as applicable to
convictions under 21 U.S.C. S 846. We believe, however, that this is
intended to refer only to convictions for conspiring to violate 21 U.S.C.
S[S ] 859, 860 or 861. Indeed, as noted in the text, the captions to
section 2D1.1 and 2D1.2 clearly indicate that they are intended to apply
both to substantive violations of the statutory provisions upon which
they are premised and to conspiratorial and attempted violations
thereof.").

9
surrounding facts. Simply put, to the minority,"the Index
merely points the court in the right direction; its
suggestions are advisory; what ultimately controls is the
`most applicable guideline.' " Crawford , 185 F.3d at 1026-27
n.7 (citation omitted); Clay, 117 F.3d at 319 (citing
commentary note 3 to S 1B1.1 which "clearly states that
`[t]he list of `Statutory Provisions' in the Commentary to
each offense guideline does not necessarily include every
statute covered by that guideline.' ").

While we agree that the Statutory Index is not definitive
but, rather, to be used for guidance, we are also convinced
that it should only be disregarded in the " `atypical case' in
which the guideline specified in the Statutory Index is
`inappropriate.' " Crawford, 185 F.3d at 1026-27 n.7.
Deference should be paid to the Statutory Index where it
points to an offense guideline section. See Saavedra 148
F.3d at 1315-16 ("[U]nder the doctrine of expressio unius
est exclusio alterius, the express indication that an offense
guideline section applies to several statutes of conviction
`strongly suggests' that it does not apply to a statute that
is not listed")(citation omitted). As the Second Circuit
stated:

We do not understand [commentary note 3] to mean
that whenever a defendant's total criminal conduct
includes some acts that constitute an offense more
serious than the offense of conviction, the guideline for
the more serious offense may be used[.] Instead, we
understand the exception described in Appendix A to
cover those cases, probably few in number, where the
conduct constituting the offense of conviction also
constitutes another, more serious offense, thereby
rendering the offense conduct not typical of the usual
means of committing the offense of conviction.

United States v. Elefant, 999 F.2d 674, 677 (2d Cir. 1993).
We are not persuaded that this is an "atypical case" in
which the Statutory Index's "strong suggestion" of S 2D1.1
can be cast away and S 2D1.2 applied instead. See
Saavedra, 148 F.3d at 1315 (rejecting same argument and
agreeing that a crime of this type does not present an
"atypical case").9 Rather, this is a garden variety drug
distribution case to which S 2D1.1 applies.
_________________________________________________________________

9. Additionally, in order to apply S 2D1.2 to a S 841 offense, or a
conspiracy to violate S 841, the courts in the minority look to

10
The government also points us to commentary note 6 to
S 1B1.3, which states that, "[u]nless .. . an express
direct[ion] [requiring conviction under a statutory provision]
is included [in a particular guideline], conviction under the
statute is not required." Oppedahl, 998 F.2d at 587 n.4
(citing S 1B1.3, comment. (n.6)); Clay, 117 F.3d at 319
(same). Based on that statement, the government argues
that the District Court was entitled to determine that the
location of the distribution conspiracy within one or more
school zones made S 2D1.2 more appropriate than S 2D1.1.
Thus, the argument goes, without the Statutory Index as an
obstacle, the District Court was free to selectS 2D1.2,
particularly here where paragraph twelve of the"Manner
and Means" section of the indictment describes the
proximity of the distribution activities to various schools.
Cf. Saavedra, 148 F.3d at 1314 (finding the application of
S 2D1.2 inappropriate and noting that the indictment did
"not mention the proximity of [the elementary school] to the
drug activity, and it [did] not even give the specific location
of the drug activity from which such proximity could be
learned or inferred.").

We find compelling, however, the Fourth Circuit's
conclusion that commentary note 6 to S 1B1.3

is intended only to apply where a reference to a
particular statutory provision appears within the actual
body of a guideline. To hold that the various guidelines
of Chapter Two may apply regardless of whether the
_________________________________________________________________

"Application Note 3 to S 1B1.2 [which] states that in determining the
applicable guideline, it is `appropriate that the court consider the
actual
conduct of the offender, even when such conduct does not constitute an
element of the offense.' " Clay, 117 F.3d at 319 (citing U.S.S.G. S 1B1.2
comment. (n.3)). The Clay court has, however, misapplied Application
Note 3. It is very clear from S 1B1.2 that relevant conduct is not
recognized until "after determining the appropriate offense guideline
section." S 1B1.2(b); United States v. Cianci, 154 F.3d 106, 111 (3d Cir.
1998)(citing same provision with regard to base offense level
determination). Commentary note 3, therefore, when read in context,
obviously applies to S 1B1.2(b), and not S 1B1.2(a) and, thus, does not
factor into "determining the applicable guideline." Clay, 117 F.3d at 319
(emphasis added).

11
 defendant has been convicted of the statutory
provisions underlying those guidelines would effectively
turn the Chapter Two guidelines into a series of
specific offense characteristics, a result we do not
believe the Sentencing Commission to have
contemplated. Indeed, the language quoted in the text
from application note 2 to section 1B1.2 is inconsistent
with this notion.

Locklear, 24 F.3d at 648-49 n.5 (emphasis in original). "In
other words, the defendant's `relevant conduct' is actually
irrelevant to determining the applicable offense guideline
section." Saavedra, 148 F.3d at 1317.

For all of the above reasons, therefore, S 2D1.1 was the
applicable offense guideline section here. We are not quite
through, however. As noted above, had Watterson
stipulated to committing a more serious offense, the offense
guideline section selected could and should have reflected
that offense. This Court has recently discussed the
requisites of a stipulation pursuant to S 1B1.2(a). See
United States v. Nathan, 188 F.3d 190 (3d Cir. 1999). We
concluded that "where the parties drafted and agreed to a
document that explicitly contained all of the relevant
stipulations between them, it is clear that their`deal'
encompassed only those stipulations contained in that
document." Nathan, 188 F.3d at 200-01. We made clear
that issues emerging in factual basis colloquies are not
stipulations. See id. at 193, 201; see also United States v.
Rutter, 897 F.2d 1558 (10th Cir.)(" `[O]nce the Government
agrees to a plea bargain without extracting such an
admission [regarding a more serious offense], facts
admitted by the defendant to shorten or obviate a
sentencing hearing do not establish a `stipulated offense'
within the meaning of section 1B1.2(a).' ")(citing United
States v. Guerrero, 863 F.2d 245, 248 (2d Cir. 1988)), cert.
denied, 498 U.S. 829 (1990).

Watterson did not stipulate to distribution within a
school zone; indeed, the stipulations in her plea agreement,
which constituted the parties' entire agreement, did not
even mention a school zone. Simply agreeing, when asked,
with the location in which the conspiracy operated did not
a stipulation make. See, e.g., Crawford, 185 F.3d at 1027

12
n.8 (noting that plea agreement did not include stipulation
to a more serious offense even though defendant was
originally indicted for violating S 860); Saavedra, 148 F.3d
at 1314 (finding that Saavedra "never made the sort of
formal stipulation that would support sentencing him for a
violation of S 860" despite conceding at sentencing that the
activities took place within the requisite proximity to the
school). For this reason as well, S 2D1.1, and not S 2D1.2,
is the applicable offense guideline section. See Crawford,
185 F.3d at 1027 n.8 (denying use of S 2D1.2 in case in
which indictment charged violation of S 860 but defendant
pleaded guilty to S 841 offense).

Step Two

It is at step two, where the Court determines the base
offense level, when relevant conduct may be taken into
account. Again, conduct is "relevant" if it relates to:

(1) calculating the base offense level, (2) considering
the specific offense characteristics set forth in the
particular guideline, (3) considering any cross-
references contained in the particular guideline, and (4)
making any adjustments authorized by Chapter Three.

Chandler, 125 F.3d 897-98 (citing S 1B1.3(a)). As the Fifth
Circuit noted in Chandler, the location of t